Patna High Court Dismisses Contractor’s Plea | Upholds Re-Tender Under State EPC/SBD Policy | Judicial Review Under Article 226 Not Invoked in Absence of Arbitrariness
Safiya Malik
The High Court of Judicature at Patna Division Bench of Chief Justice Vipul M. Pancholi and Justice Partha Sarthy delivered its judgment on August 27, 2025, dismissing a writ petition filed under Article 226 of the Constitution of India. The court directed that the writ petition stands dismissed, holding that the cancellation of an earlier tender process and initiation of re-tendering by the respondent authorities was in accordance with the policy of the State Government and not arbitrary or irrational. The Bench recorded that the court was not inclined to exercise powers of judicial review under Article 226 in the matter.
The matter arose from a petition filed by a private limited company engaged in construction works, which had participated in a Notice Inviting Re-Tender dated February 19, 2024. The work concerned was “strengthening and widening/reconstruction with two lane with hard shoulder from Bahadurganj to Terhagach Road in the State of Bihar under work division of Kishanganj.” The Notice Inviting Re-Tender had been issued on EPC Mode.
The petitioner company submitted its bid along with a bank guarantee amounting to Rs. 3.08 crore. On June 26, 2024, the Technical Bid Evaluation Committee examined the technical bids. After scrutiny, the petitioner and six other bidders were declared qualified. Subsequently, one of the qualified companies was debarred following certain complaints.
On September 19, 2024, the financial bids were opened. The petitioner emerged as the lowest bidder (L1). It was the petitioner’s case that it was entitled to issuance of a Letter of Acceptance since it was L1 and had fulfilled all terms and conditions.
The grievance arose when, on November 22, 2024, the Engineer-in-Chief (Works Management) directed the Chief Engineer, Seemanchal Wing, to re-tender the work by adopting SBD Mode instead of EPC Mode. This order, contained in Letter No. 5876(E), was challenged in the writ petition.
The petitioner contended that the initial tender had been correctly issued on EPC Mode since a corrigendum extended the time of completion to 20 months. It was argued that as per the State’s policy dated May 31, 2023, tenders with cost above Rs. 50 crore and time for completion beyond 18 months were to be issued under EPC Mode. The petitioner submitted that since the corrigendum fixed the time of completion at 20 months, the EPC Mode was valid.
Further, the petitioner argued that the decision to cancel the tender process was taken by an officer lacking jurisdiction, rendering the order without authority. It was contended that cancelling the tender after opening of the financial bids was arbitrary and violative of Article 14 of the Constitution.
The petitioner also filed an interlocutory application (I.A. No. 2 of 2025) challenging disqualification in the subsequent re-tender process initiated by the respondents in SBD Mode. In the re-tender, the petitioner’s technical bid was rejected on the ground that it failed to disclose the pendency of the present writ petition in its bid documents. The petitioner argued that this was a hyper-technical ground since the respondents were themselves parties to the pending case.
In response, the Advocate General, appearing for the respondents, submitted that the NIT issued on February 19, 2024, had fixed 18 months as the time of completion. As per the May 31, 2023 policy, only tenders with more than 18 months completion time and exceeding Rs. 50 crore were to be issued in EPC Mode. Since the instant tender had been floated with 18 months completion period, it ought to have been issued on SBD Mode. The corrigendum issued subsequently could not retrospectively validate the EPC Mode tender. Therefore, cancellation of the tender was lawful and in line with State policy.
The respondents further contended that the petitioner’s failure to disclose pendency of the present writ petition in the re-tender process justified rejection of its technical bid.
The respondents relied upon judgments of the Hon’ble Supreme Court in Jagdish Mandal vs. State of Orissa and The Principal Chief Conservator of Forest & Ors. vs. Suresh Mathew & Ors. to contend that judicial review in tender matters is limited and courts should refrain from interfering where decisions are bona fide and in public interest.
The petitioner, on the other hand, placed reliance on the judgment in Subodh Kumar Singh Rathour vs. Chief Executive Officer & Others, reported in 2024 SCC OnLine SC 1682, to argue that sanctity of tender processes must be maintained and arbitrary cancellations discouraged.
The court, having heard both sides and perused the record, proceeded to examine the validity of the respondent authorities’ decision.
The Division Bench recorded: “It is not in dispute that the Notice Inviting Re-Tender was issued on 19.02.2024 for the works stated in the said NIT on EPC Mode… it has been specifically stated in the said document that time of completion of work is 18 months.”
The Bench examined the State policy dated May 31, 2023 and observed: “If the cost of the work is more than Rs. 50 Crores and time for completion of the work is more than 18 months, then the tender is required to be issued by EPC Mode. Thus, it can be said that if the time for completion of work is 18 months, the NIT is required to be issued by way of SBD Mode.”
Rejecting the petitioner’s contention based on the corrigendum, the court stated: “On the date of issuance of NIT on 19.02.2024, the time of completion of work provided in the said NIT was 18 months. Merely because subsequently corrigendum was issued, the tender process issued from beginning cannot be termed as correct process in view of the policy of the respondent-State.”
The court further recorded: “When the respondent authority came to know about the aforesaid mistake committed by it by issuing tender process in February, 2024, same has been corrected by cancelling the entire tender process and thereby issuing a fresh NIT as per the policy dated 31.05.2023.”
The Bench observed that the cancellation was not unauthorized: “Looking to the facts of the present case, it cannot be said that the officer who has cancelled the tender process was not authorized to cancel the same as the issuance of tender process from the beginning itself was not as per the policy.”
On the reliance placed by the petitioner on Subodh Kumar Singh Rathour, the Bench held: “We cannot dispute the proposition of law laid down by the Hon’ble Supreme Court in the said case. However, we are of the view that in view of the facts and circumstances of the present case, as discussed hereinabove, the aforesaid judgment would not render any assistance to the case of the petitioner.”
The court referred to Jagdish Mandal and recorded: “Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides… If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.”
It further noted from Suresh Mathew: “The decision of the authority is giving a fresh opportunity to all interested bidders to compete with each other in the process of the fresh selection. In our opinion, the decision taken by the authority is not affecting the public interest, on the contrary it furthers the cause of the public interest and fair play.”
Upon applying these precedents, the Bench concluded: “The impugned decision taken by the respondent authority cannot be termed as arbitrary or irrational. In fact, the said decision is as per the policy dated 31.05.2023. Further, the petitioner has not made any allegation against the respondent authority with regard to mala fide or it is not the case of the petitioner that the decision has been taken to favour someone.”
Regarding the interlocutory application, the Bench observed: “In the said tender process, the petitioner has failed to point out about the pendency of the proceedings before the Court and, therefore, the respondent authority has rejected the technical bid of the petitioner. We are of the view that while rejecting the technical bid of the petitioner in the re-tender process also the respondent authority has not committed any error.”
The Division Bench concluded: “In view of the aforesaid discussions, we are not inclined to exercise powers of judicial review under Article 226 of the Constitution of India.” The court then held: “Accordingly, the writ petition stands dismissed.”
The order further recorded that the rejection of the petitioner’s technical bid in the re-tender process was lawful and did not require interference.
Advocates Representing the Parties
For the Petitioners: Mr. Y.V. Giri, Senior Advocate; Mr. Anil Kumar Singh, Advocate
For the Respondents: Mr. P.K. Shahi, Advocate General; Mr. Madanjeet Kumar; Mr. Samir Kumar
Case Title: M/s Topline Infra Projects Pvt. Ltd. vs. The State of Bihar & Ors.
Neutral Citation: 2025: PATHC:74911-DB
Case Number: Civil Writ Jurisdiction Case No. 19036 of 2024
Bench: Chief Justice Vipul M. Pancholi; Justice Partha Sarthy
